Rugsat (Migration)

[2021] AATA 4429

Rugsat (Migration) [2021] AATA 4429 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanakorn Rugsat

CASE NUMBER:  2013414

HOME AFFAIRS REFERENCE(S):          CLF2020/38427

MEMBER:Meena Sripathy

DATE:1 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 01 November 2021 at 11:00am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – becoming a dependent child of an Australian permanent resident – no substantive visa at the time of application – parents’ relationship ceased – mutual agreement with the mother – financial hardship – dependent child of the sponsor since birth – compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 5, 48, 65, 351
Migration Regulations 1994, Schedule 2, cls 802.211; r 1.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 August 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 August 2020. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, one of the criteria to be met in this case is cl.802.211 which applies to applicants to whom s48 of the Act applies, and requires that, since last applying for a substantive visa, the applicant has become a dependent child of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Section 48 of the Act applies to an applicant who does not hold a substantive visa at time of lodgement of the application, and who has had a visa refused or cancelled since their last entry into Australia.

4. The delegate refused to grant the visa on the basis that cl.802.211 was not met because the delegate was not satisfied that the applicant had become a dependent child of an Australian citizen, Australian permanent resident or eligible New Zealand citizen since he last applied for a substantive visa on 13 August 2015 as he is considered to have been a dependent child of both his father, the sponsor, and mother since his birth.

5. The applicant appeared before the Tribunal by video hearing on 28 October 2021 to give evidence and present arguments. The hearing was held as a combined hearing with that of his sibling, Natcha Rugsat, who made a separate application for a Child (Residence) (Class BT) visa on the same date and which was refused for the same reason, and who also applied to the Tribunal for review (AAT case ref. 2013408).  Both matters were constituted to the same Tribunal and the Tribunal decided to combine the hearings given they each involve the identical issue.  Both applicants were represented by their father, Chananun Rugsat, the sponsor.  The Tribunal also received oral evidence from Punee Rugsat, mother of Chunanun, and grandmother of the visa applicants.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

7. The applicant is 15 years old and was born in Thailand. He is sponsored by his biological father, Chananun Rugsat, who is an Australian citizen. He arrived in Australia on 18 September 2016 on a Partner visa (Temporary) Subclass 309, granted on the basis of being a dependent child of his mother who was the primary visa applicant. 

8. On 17 January 2020 the applicant’s Partner visa (Permanent) Subclass 100 visa was refused following information provided by the applicant’s father to the Department in response to a request for information to assess the applicants for the permanent visa, that his relationship with the applicant’s mother had ceased, they were divorced in January 2018 and she had departed Australia. 

9. Department records confirm the applicant’s mother departed Australia on 26 January 2018.

10. The applicant lodged the present application on 4 August 2020. The delegate refused the application on 19 August 2020 on the basis that the applicant did not meet cl.802.211.

    Evidence before the Tribunal

11. At the hearing the applicant’s father provided the following information.  He lives with his parents, brother and two children (the visa applicants) in a house in Campsie. He was laid off from his employment during lockdown periods in 2020 and 2021. He is presently working 3 days a week doing home delivery. The visa applicants are studying in Years 7 and 9 at local high schools. 

12. The Tribunal asked the applicants’ father (sponsor) about his and his family’s migration history.  His father originally came in around 1996, his brother came here around 1998 and he and his mother followed in 1999. The whole family were granted permanent subclass 856 visas on the basis of his father’s application in 2007. He has been going back and forward between Thailand and Australia since his first arrival.  The reason for this was because of his relationship with the applicants’ mother which was just starting around that time.  He was present in Thailand when both children were born.

13. The applicants came to Australia in September 2016, having applied for Partner visas in August 2015.  The Tribunal asked why he waited until 2015 to sponsor his wife and children for Partner visas.  He said he was advised to wait until he obtained his citizenship, which was granted in May 2014. Since this initial arrival his children returned to Thailand once together in 2017, with their grandparents and his daughter returned a second time with her grandmother in December 2018. His son did not go on that occasion because he had soccer commitments in Australia.

14. The sponsor told the Tribunal he met his wife through the local neighbourhood where he grew up.  They were very young. After his wife came to Australia, the relationship did not go well.  He believes she may have had a boyfriend in Thailand while waiting for the visa to come here. When the relationship deteriorated beyond repair they decided to divorce.  They obtained a divorced from the Thai consulate here and she returned to Thailand.  They came to an agreement that the children would remain with him in Australia. There are no court orders relating to the children, or any written document. They just came to an agreement. She departed in January 2018 and has not returned since then.  His daughter visited her when she went back in December 2018.

15. The Tribunal asked when he informed the Department about these circumstances.  He said he was not aware of the process and just assumed because he was a citizen his children would be allowed to stay. It was only after he received the decision refusing their visa that he sought advice about it.  This was in January 2020. The Tribunal asked why they did not lodge the present application until August 2020.  He said that he had another stress and that was the amount of money he was asked to provide to make the applications.  It was not until August that he was able to access $10,000 from his superannuation funds to proceed with the applications. The sponsor’s mother added that they did repeatedly try to seek advice from their agent but it was not forthcoming.  They were disadvantaged because they did not know where to go and what to do.  They relied on their agent and were not properly advised.

16. When asked again why he did not approach the Department or seek advice about the status of his children between January 2018 and January 2020 he said he was under the mistaken assumption that because of his migration status the children would be granted residency automatically.  He did not realise this was not the case until the decision of the Department was made.

17. The Tribunal discussed with the sponsor and applicants the issue arising in the case, being cl.802.211.  This criteria applies because they did not hold a substantive visa at the time of application and had a visa refused since their last entry. It requires that the visa applicant became a dependent child of an Australian citizen or permanent resident since last applying for a substantive visa.  The reasoning of the delegate was that the children were always dependent children of his so they cannot meet this requirement that they became dependent children since the last application was made. It explained that the Tribunal must also apply this law and in its reading of it,  the only other circumstances that an applicant may meet this requirement is when the applicants were not the dependent children of the sponsor previously and later become dependent children (eg. as step children) or where the sponsor later obtained citizenship or permanent residency but none of these circumstances apply in this case.  It asked if they had any comments or other arguments to make. They did not.

    FINDINGS AND REASONS

18. The issue in the present case is whether the visa applicant is a person affected by s48 of the Migration Act and if so, has become a dependent child of the sponsor since last applying for a substantive visa, and meets cl.802.211.

19. The relevant provisions of the Migration Act and Regulations are as follows:

    802.211 (Criteria to be satisfied at time of application)

    If the applicant is a person to whom section 48 of the Act applies, the applicant:
    (a) has not been refused a visa or had a visa cancelled under section 501 of the Act; and
    (b) since last applying for a substantive visa, has become a dependent child of:

    (i) an Australian citizen; or

    (ii) the holder of a permanent visa; or

    (iii) an eligible New Zealand citizen.

    Section 48 (Migration Act 1958) Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

    48(1) A non-citizen in the migration zone who:

    (a) does not hold a substantive visa; and

    (b) after last entering Australia:

    (i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
    (ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas); may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

    48(1A) A non-citizen in the migration zone who:

    (a) does not hold a substantive visa; and

    (b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:

    (i) the application has been finally determined; or

    (ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
    (iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor; may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

    48(2) For the purposes of this section (which applies only in respect of applications made
    while a non-citizen is in the migration zone), a non-citizen who:

    (a) has been removed from the migration zone under section 198; and

    (b) is again in the migration zone as a result of travel to Australia that is covered by

    paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone, despite the removal referred to in paragraph (a).

    Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to
    Australia despite their removal under section 198.

    48(3) For the purposes of this section (which applies only in respect of applications made
    while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa,
    leaves and re-enters the migration zone is taken to have been continuously in the migration
    zone despite that travel.

    48(4) In paragraphs (1)(b) and (1A)(b):

    (a) a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and
    (b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.

    Dependent Child

    Reg 1.03 -dependent child,

    of a person, means the child or step-child of the person (other than a child who is engaged to
    be married or has a spouse or de facto partner), being a child who:

    (a) has not turned 18; or

    (b) has turned 18 and:

    (i) is dependent on that person; or

    (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    ‘child of a person’ has a meaning affected by section 5CA (Migration Act 1958)

    Section 5CA Child of a person

    (1)  Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)  someone who is an adopted child of the person within the meaning of this Act.

    (2)  The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)  Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise

20. On the information and evidence before it the Tribunal finds the applicant’s Partner visa (Permanent) subclass 100 visas was refused on 17 January 2020 and his Subclass 309 visa ceased following that event.   He was not holder of a substantive visa at the time the present visa application was made.  Therefore s48(1A) applies to him as he did not hold a substantive visa and, after last entering Australia, he was refused a visa for which an application had been made on his behalf, as a minor, being the applications for the Partner visas made on 13 August 2015.

21. As the applicant is a person to whom s48 of the Act applies, he is required to meet time of application criteria cl.802.211, which requires that since last applying for a substantive visa she has become a dependent child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen. 

22. The delegate found that the applicant did not meet this criterion because he is considered to have been a ‘dependent child’ of her his sponsor father and mother since birth and, given the sponsor acquired Australian citizenship on 15 May 2014, the applicant has not become the dependent child of an Australian citizen since he last applied for a substantive visa on 13 August 2015.

23. The Tribunal has independently considered this clause.  In the Tribunal’s view, the criterion establishes a window of time in which the applicant needs to have ‘become’ a dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. The window of time starts when they last applied for a substantive visa (in this case 13 August 2015) and ends when they applied for the Subclass 802 visa that is under consideration (in this case, 4 August 2020). The requirement is a composite one, focused on both the relationship between the applicant and another person (i.e. whether they are a dependent child), and also on that other person’s immigration status (i.e. whether they are an Australian citizen, holder of a permanent visa or eligible New Zealand citizen).

24. In the present case, it is not in dispute the applicant is the biological child of the sponsor and therefore he comes within the meaning of ‘child of a person’ in s5CA. It is also not in dispute that the sponsor acquired Australian citizenship on 15 May 2014. Therefore, on the facts before it, the requirements of the child relationship and the other person’s residency status were both met prior to the relevant window of time. As there does not appear to have been any relevant change in circumstances either to the applicant’s relationship with the sponsor or the sponsor’s immigration or residency status during the relevant period, the applicant does not appear to meet this criteria because they cannot be said to have ‘become’ a dependent child of the sponsor during the relevant period.

25. For the reasons above, the criteria in cl.802.211 is not met.

26. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    Ministerial intervention

27. The applicant is a 15 year old minor who came to Australia with his mother and sibling, sponsored by his father, 5 years ago. The relationship between his parents broke down and they separated and divorced, and his mother returned to Thailand.  The applicant remained in Australia and has been living here continuously with his Australian citizen father and long term permanent resident grandparents and other close relatives. This period of 5 years are formative years his the span of his young life.  While his situation of not meeting an applicable criteria for the grant of the visa could have been avoided had his father sought and obtained proper advice at an earlier stage and lodged the present application prior to the refusal of the Partner visa application in January 2020, this was outside the applicant’s control as he is a minor. The applicant’s father told the Tribunal he experienced difficulties getting advice from the migration agent about what to do and referred to the additional stress of having to find the money to lodge the applications.  Additionally, the circumstances of the COVID 19 lockdowns, including the evidence provided that the sponsor was stood down from his employment during that period, and the obvious issues, which are continuing, relating to travel restrictions going into and out of Australia, may be relevant to a consideration of whether there are sufficiently strong compassionate circumstances of  hardship and distress to the applicant’s Australian citizen close family members of the decision to refuse the application in the present case and require the minor applicant to return overseas only to relodge fresh Child visa applications from offshore.  The Tribunal considers it may also be relevant to consider whether the application of the legislation in this particular case leads  to an unfair or unreasonable result, and the feasibility and purpose of requiring the applicant to travel offshore to relodge a Child visa application in the context of an ongoing global pandemic and travel restrictions.  

28. Having regard to the applicant’s circumstances, in particular the matters referred to below, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

   Meena Sripathy
   Member